The full paper is available on the Team’s page on the MARQUES website. It provides a snapshot of the case law with regard to ISP liability in Europe and will be updated as more court decisions are handed down, and covers both host providers and access providers.
The paper gives an overview on the guidelines laid down by the CJEU, if applicable, and in Germany, the Netherlands, England, Denmark and Sweden on the liability of host and access providers and the actions that may be requested from these providers when discovering an infringement (“notice and takedown”).
The authors conclude that an ISP may be held liable for third party infringements if it does not react upon becoming aware of the facts or circumstances of the infringement, for example usually by taking down the infringing content.
There is no obligation of the provider to actively investigate and constantly monitor all the data of each customer and prohibit infringements by the users of their platforms.
Nevertheless, European law does not conflict with an obligation imposed by national courts to prevent further infringements arising from a specific third party infringement. In Germany for example the Supreme Court sees an obligation on a hosting service provider to take appropriate measures which are technically and commercially reasonable to prevent similar infringements in the future (such as keyword filters and manual (re-)checks).
Moreover, in particular with regard to internet access providers, questions have been raised whether such intermediaries may be ordered to block the access of customers (to certain websites). This could lead to a general monitoring, which is prohibited by the E-Commerce Directive (Article 15).
However, the CJEU clarified that such a blocking injunction may not violate EU law, even when that injunction does not specify the measures to be taken. Yet these measures may not unnecessarily deprive internet users of the possibility of lawfully accessing the information available. Following this, blocking injunctions against internet access providers have been allowed in several jurisdictions, in particular Germany and England.
Download and read the full paper on the Cyberspace Team page